The constitutionality of section 21 of the Mechanic’s Lien law of 1903, as applied to a subcontractor, where the original contract waives the lien created by the statute or the lien has been released by the original contractor before the lien of the sub-contractor has attached, was fully considered in the case of Kelly v. Johnson, (ante, p. 135,) and it was there held that a sub-contractor’s lien can only exist by virtue of the original contract, and in case the original contract provides there shall be no lien on the improved property for material or labor furnished by the original contractor, or the lien has been subsequently released by the original contractor before a sub-contractor’s lien has attached, such contract or release was binding upon a sub-contractor who had furnished labor or material to the original contractor, arid that as said section of the statute was framed with the view to give a sub-contractor a lien which should not be dependent upon the original contract, it was to that extent unconstitutional and void. That case is conclusive of the case at bar.
The judgment of the municipal court will therefore be affirmed.
Judgment affirmed.